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Constitutional Philosophy Lecture 3 Jon Roland December 1, 2012.

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1 Constitutional Philosophy Lecture 3 Jon Roland December 1, 2012

2 Law of Agency Principal Selects agent To whom he delegates powers And issues instructions And holds accountable Corrects or removes if powers exceeded If not, becomes liable for actions of agent Arises from constitution of society

3 What is a Power? Generally, an expenditure of scarce resource When on people, coercive So it is meaningful to distinguish between “action” and “inaction” Nondelegation of power is a decision not to act “No decision” is a decision, but it can be not to expend or coerce, and accept consequences A republican constitution presumes nonauthority to act, right to such presumption

4 Trust Agency with three actors: 1.Settlor (principal) 2.Trustee (agent) 3.Beneficiary Each is a distinct legal person Although they can be combined in one individual Whose own property separate from trust assets And judgment must keep property separate

5 Corporation For-profit or non-profit A kind of trust 1.With multiple settlors (incorporators) 2.Multiple trustees (directors) 3.And multiple beneficiaries (shareholders, members) With procedures for succession of each So that the corporation outlives its individuals But with its own assets, separate from actors A legal “person”, recognized by law, but not “created” by it

6 Government is Corporation Republic supposed to be a non-profit Monarchy, oligarchy tends to be for-profit Where some benefit at expense of others Using politics to bypass the marketplace Discussed in public choice theory Calling the oligarchs or their supporters “rent- seekers” Only known solution is sortition (selection of officials by lot)

7 Morality in Government Discussed by Machiavelli Often not possible to reconcile personal morality with needs of government and society Sometimes must do evil to some to protect others (beneficiaries of the trust) Or those in power Or their policies Which may be good policies, on the whole But conflicts in interpretation of powers

8 Easy: one principal, one agent If the principal and agent are each one individual, disputes on interpretation easy The principal decides, and instructs, and can change the power from one day to the next If the agent disagrees, he can resign Or the principal can fire agent, get another Main issues may come if agent owed money for his actions, or is penalized for his actions If unauthorized, principal doesn't have to pay him

9 Multiple Principals? May disagree on interpretation of powers Even if they agree on structure, procedure Or trust one another Because successors may not understand Or comply if there are ambiguities But substantial consensus required on scope of powers delegated So defaults to breadth of power on which all but a few can agree

10 Decision Rules On less important matters, simple majority vote On more important, like scope of powers, needs supermajority or near consensus Majorities in 9 states ratified But supermajority supported strict construction of powers This reflected in amendment rules: 1.2/3 of people though their representatives, plus 2.Majorities in 3/4 of the states

11 “Incidental” Powers Earlier doctrine was power to be literally and strictly interpreted: Potestas stricte interpretatur By 1776 Tory English doctrine allowed for delegated power to imply “incidental” powers Necessary and Proper Clause of U.S. Constitution intended to delegate incidental powers But that still left disagreement on the boundaries of what is “incidental”

12 Common Law Split Most common law precedents in English courts But colonial courts began to diverge from English precedents This most notable in Zenger Trial (1735) And recognition in colonial courts of colonists having “rights of Englishmen” Whereas English courts often did not recognize colonial rights of Englishmen

13 Pre-1776 Authorities Fall mainly into two camps, not just one Tories favored broader interpretations of powers Whigs favored stricter interpretation In court, Tories led by Lord Mansfield Whigs led by Lord Camden Revolutionary Americans were mostly Whigs Constitution written as Whig model

14 Commentators Tory commentator William Blackstone (1766) Whigs represented by Edward Coke (1628) But Blackstone more recent, accessible England trended Tory, leading to abuses that provoked American Revolution So U.S. was reaction to Tory interpretation But Tory thought carried by Hamilton, Marshall While Whig thought by Jefferson, Madison Which should be given greater weight?

15 Strict or Broad? When principals disagree on scope of delegated authority, may ignore small minority, unless it can prevail in court But may not ignore substantial minority, say more than 1/3 of the people or majorities in more than 1/4 of the states From our rule, constitutional powers must be interpreted no more broadly than 1/3 of the people, or majorities in more than 1/4 of the states, in 1787, would tolerate Deviation from this rule can bring civil conflict

16 Records of Ratification Incomplete, but most states demanded and proposed amendments Which were boiled down into the Bill of Rights With most lumped into the Ninth and Tenth No vote of people taken on how to interpret each provision But we do have records of the public debate, which show a strong demand for strict construction of powers, broad for rights

17 Ratification and Aftermath Enough insisted on Bill of Rights that there would have been no ratification without the promise of it Federalists did not just “win” ratification debates Proponents won ratification, but skeptics won on interpretation Debate continued: Hamilton v. Jefferson Culminated in Election of 1800 And continues to this day: Statists v. originalists

18 Republic not Majoritarian Can't protect rights if too many decisions made by simple majorities Or worse, by pluralities of those voting Majorities can be constructed of rent-seekers Get tyranny of the majority So well-designed constitution provides for blocking actions by minorities Until consensus can be developed Sometimes inaction is better

19 Republic presumes marketplace But free market metastable, with three threats: 1.Unchecked government 2.Unchecked speculative investment 3.War or civil conflict Requires constitutional devotion to restrain government and money Only way so far found to restrain speculation is shmita Seven-year reboot cycle (production, investment) But shmita requires common government or religion

20 Causes of Dysfunction Mistakes in original Constitution Omissions in original Constitution Ambiguities in original Constitution Loss of devotion to Constitution Loss of understanding of Constitution Reliance interests supporting noncompliance Unmanageably large and complex government Unmanageable problems

21 Remedies Amendments Statutes Elections Appointments Court decisions Juries Public education Organizing public pressure Leadership

22 Civic Virtue Decline People too prosperous, complacent People distracted by making a living People distracted by entertainments Don't motivate children to become educated Education that neglects civics, retards maturation Loss of community organizing Fragmentation of families Culture of deception

23 Poison Pill Proposals Reformers led astray by clever proposals that won't work or will make things even worse. People too willing to leave details to others, many of whom are not really on their side. One form of this are “patriot myths” about law, although elites have their own myths. Without investing in legal self-education, people don't know whom to believe. Poison pills often absorb reformer resources, disappoint, and cause them to drop out.

24 Constitutional Apostasy Constitution not perfect. Was intended to be amended more than it has been. But amendment difficult. So too many just drifted away from original understanding in their practices. And pretended the Constitution supports them. But that pretense is becoming unsustainable. Most reliance interests no longer pretend to be compatible with original understanding

25 Inconsistent Practices When lose tether to Constitution, practices can become inconsistent, with the Constitution, and with each other. The Rule of Law does not permit contradictions. Allowing one contradiction allows them all. And decisions become politics rather than law. But politics requires some rules to avoid anarchy. So we must find and resolve the contradictions. Which will involve rediscovery of original meaning.

26 Reliance Interests Called “rent-seekers” by economists. Examined in public choice theory. Some discover they can make more money through political process than in the market. Just as they can by speculating in financial instruments instead of making things. The result is bubble of government and the financial sector. Bubbles burst, and this one can bring starvation.

27 Are the preppers right? About economic collapse, yes. But preparing for that requires places in the country. And substantial resources. Most can prepare for a few weeks, but need to prepare for years. And form communities for mutual defense. No good solution for small groups. Even elites in bunkers probably can't hold out long enough.

28 But after the fall? If we don't to turn to fascism, preparation needs to be for coming out on the other side of the Great Unraveling. That means a constitutional order, not strongmen. The Constitution we have is okay with some clarifications. But we are going to need to rebuild devotion to it from the bottom up. And prepare the people to carry it out.

29 End of Lecture

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